Villada v. Grand Canyon Diner

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARIA TERESA MARTINEZ VILLADA, on

behalf of herself and others

similarly situated in the proposed

FLSA Collective Action,

Plaintiff,

MEMORANDUM & ORDER

- against – 22-CV-2782 (KAM)(RML)

GRAND CANYON DINER, GRAND CANYON

BISTRO, GRAND CANYON RESTAURANT,

HAPPY ONE RESTAURANT, INC., ROBERT

OJEDA, BERNARDO MARTINEZ, CESAR

RENDON, GONZALO CARRETO, ALFREDO

TAPIA, MARINELLA RENDON, and ANDREA

CARRETO,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Maria Teresa Martinez Villada (“Villada” or the

“Plaintiff”), who worked exclusively at Grand Canyon Diner,

brought this action against Defendants Grand Canyon Diner, Grand

Canyon Bistro, Grand Canyon Restaurant, and Happy One Restaurant,

Inc., d/b/a Mex Carroll’s Diner (collectively, the “Corporate

Defendants”), Robert Ojeda (“Ojeda”), Bernardo Martinez

(“Martinez”), Cesar Rendon (“C. Rendon”), Gonzalo Carreto (“G.

Carreto”), Alfredo Tapia (“Tapia”), Andrea Carreto (“A. Carreto”),

and Marinella Rendon (“M. Rendon”) (collectively, the “Individual

Defendants”). (See generally ECF No. 33, Second Amended Complaint

(“SAC”).) Plaintiff brings claims under (1) Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); (2)

the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §

290 et seq.; (3) the New York City Human Rights Law (“NYCHRL”),

New York City Administrative Code § 8–101 et seq.; (4) the Fair

Labor Standards Act (“FLSA”), 29 U.S.C § 201 et seq.; (5) the New

York State Labor Law (“NYLL”) § 190 et seq.; and (6) state common

law. (Id.)

Plaintiff now moves for partial summary judgment pursuant to

Rule 56 of the Federal Rules of Civil Procedure as to Plaintiff's

claims of (1) FLSA and NYLL overtime violations; (2) Title VII,

NYSHRL, and NYCHRL hostile work environment; and (3) NYLL wage

notice claims. (ECF No. 43-1, Plaintiff’s Memorandum of Law in

Support (“Pl. Mem.”), at 2.) For the reasons stated herein,

Plaintiff’s motion for partial summary judgment is respectfully

denied.

BACKGROUND

I. Factual Background

The following facts are taken from the parties’ Local Rule

56.1 statements and counter-statements, as well as from documents

and transcripts cited in the parties’ Local Rule 56.1 statements.

(See ECF No. 43-4, Plaintiff’s Statement of Undisputed Material

Facts (“Pl. 56.1”); ECF No. 43-7, Defendants’ Rule 56.1 Counter-

Statement (“Def. Counter 56.1”); ECF No. 43-5, Defendants’ Rule

56.1 Statement (“Def. 56.1”); ECF No. 43-6, Plaintiff’s Reply to

Defendant’s Rule 56.1 Statement (“Pl. Reply 56.1”).) Except as

otherwise indicated, the facts set forth below from the parties’

Local Rule 56.1 statements are undisputed. The court summarizes

only those facts that are relevant and material to the adjudication

of the instant motion and notes any material facts in dispute.

Plaintiff was employed at the Grand Canyon Diner from late

August 2019 through June 6, 2021. (Pl. 56.1 ¶ 6; Def. 56.1 ¶ 3.)

The Grand Canyon Diner, located at 179 7th Ave. in Brooklyn, is

owned by Defendants G. Carreto and M. Rendon1, and is the location

where Plaintiff worked and where her alleged claims arose. (Def.

56.1 ¶ 1; ECF No. 47-1, Deposition of Gonzalo Carreto (“G. Carreto

Dep.”), at 14.) It is undisputed that Plaintiff only worked for

the Grand Canyon Diner and did not work at any of the other

restaurants owned by G. Carreto. (Pl. 56.1 ¶ 6.) G. Carreto

testified at his deposition that he and M. Rendon had been partners

and co-owners of the Diner since it opened in 2013, and there had

been no other partners in the business enterprise since that time.

(G. Carreto Dep. at 11.) M. Rendon testified at her deposition

that three cooks, four dish washers, and four waiters were employed

at the Grand Canyon Diner. (ECF No. 48-2, Deposition of Marinella

Rendon (“M. Rendon Dep.”), at 10-11.) Defendant A. Carreto, G.

1 M. Rendon explained in her deposition that she was just an owner “on paper”

and that she had never received any profits from the restaurant. (M. Rendon

Dep. at 12-14.)

Carreto’s wife, worked at the Grand Canyon Diner part-time as a

waitress for a limited number of days per week. (ECF No. 48-1,

Deposition of Andrea Carreto (“A. Carreto Dep.”), at 7-9.)

The other Defendants are employed by or related to the Grand

Canyon Diner and its two owners. Defendants Martinez and Ojeda

began employment as cooks at the Grand Canyon Diner in

approximately 2018 and 2020, respectively, and were still employed

at the time of their depositions for the instant case. (Pl. 56.1

¶¶ 2-3.) Defendant C. Rendon is the husband of Defendant M. Rendon

and has worked as a waiter at the Grand Canyon Diner since

approximately 2020. (Id. ¶ 4.)

The Grand Canyon Bistro is a separate restaurant at 300

Schermerhorn St. in Brooklyn which was opened in or around 2019

and is owned by G. Carreto, who holds a majority interest, and C.

Rendon, who is a 20% owner. (G. Carreto Dep. at 12-13.) The Grand

Canyon Restaurant is another restaurant owned by G. Carreto and C.

Rendon, with the same ownership percentages, which was opened in

2018 and is located at 143 Montague Street in Brooklyn. (Id. at

15.) G. Carreto explained in his deposition that he is in charge

of payroll, hiring and firing, setting schedules, and policies at

all three restaurants. (Id. at 15-17.) G. Carreto further

explained that although the same payroll company services all three

restaurants, each location has a separate account with the payroll

company. (Id. at 18-19.) G. Carreto explained that he keeps track

of employees’ hours by writing them down on paper “every day” but

throws those handwritten records away as soon as he does payroll.

(Id. at 22.)

G. Carreto also owns Defendant Happy One Restaurant, Inc.,

which does business as (and is hereafter referred to as) “Mex

Carroll’s Diner” and is located at 192 Columbus Street in Brooklyn.

(Id. at 34.) G. Carreto testified at his deposition that he is

the sole owner of Mex Carroll’s Diner, and that it opened in 2012

or 2013. (Id.) A. Carreto is the manager of Mex Carroll’s Diner.

(A. Carreto Dep. at 7-9.) Defendant Tapia is the brother of A.

Carreto, and is employed as a bar back at the Grand Canyon Bistro.

(ECF No. 47-2, Deposition of Alfredo Tapia (“Tapia Dep.”), at 8-

9, 19-20.) Defendant Tapia denied having any role at the Grand

Canyon Diner at his deposition and explained that he would only

visit the Grand Canyon Diner to see his sister, A. Carreto, when

she was at the restaurant. (Id. at 19-21.)

The previously-stated facts are undisputed. The parties

vigorously dispute the facts that follow relating to Plaintiff’s

central claims against Defendants. Plaintiff stated at her

deposition that she was paid for 40 hours of work each week by

check, and then then was paid for 20 hours extra “on the side in

cash.” (ECF No. 47-6, Deposition of Maria Teresa Martinez Villada

(“Villada Dep.”), at 8-9.) Plaintiff further testified that she

was working Monday through Saturday prior to the COVID-19 pandemic,

but that she only worked three days per week during the pandemic.

(Id. at 9-10, 31-32.) Plaintiff testified that her work schedule

picked back up after the pandemic, and that she was working “from

35 to 45 hours” per week after an unspecified date. (Id. at 10.)

Plaintiff stated that she was paid $15 per hour for all hours

worked, including those she worked in excess of 40 hours per week.

(Id.)

In contrast, G. Carreto testified at his deposition that no

employees, at any of his restaurants, are paid overtime, because

it is policy that they only work 40 hours or less. (G. Carreto

Dep. at 46.) M. Rendon also testified that no employees work over

forty hours at the Grand Canyon Diner. (M. Rendon Dep. at 14.)

G. Carreto testified that, with the exception of Martinez, all

employees are paid their hourly wages by check, and no employees

are paid wages in cash. (G. Carreto Dep. at 47-48.) Defendant

Martinez testified at his deposition that he worked 40 hours per

week “normally” and that he had never worked more than 40 hours in

a single week. (ECF No. 47-3, Deposition of Bernardo Martinez

(“Martinez Dep.”), at 8.) Defendants also produced payroll

reports2 showing that Plaintiff worked 40 hours per week from

August 2019 to March 18, 2020; between 16 and 40 hours per week

2 The payroll records were submitted in connection with the Pre-Motion Conference

held prior to Plaintiff’s filing of the motion for summary judgment, but the

Court was unable to locate the payroll records in Defendants’ submissions in

response to Plaintiff’s Motion for Summary Judgment.

between March 18, 2020, and June 24, 2020; and between 29 and 40

hours per week between July 1, 2020, and December 31, 2020. (ECF

No. 36-4, Payroll Reports.) The record before the Court does not

contain any payroll reports showing Plaintiff’s hours worked

between January 1, 2021, and June 6, 2021.

Plaintiff testified in her deposition that her co-worker

Defendant Ojeda would make “grotesque jokes” about Plaintiff and

other women as well. (Villada Dep. at 28.) Plaintiff testified

that her co-workers would make “bad jokes and other comments” and

that they would be “touching [her] and touching [her] butt.” (Id.

at 37.) Plaintiff also testified that she was subject to a

physical attack on June 6, 2021. (Id. at 28-29.) Plaintiff texted

Tapia about the assault on June 9, 2021, explaining that she could

“no longer go to work because on Sunday Mr. Roberto hit me

physically and verbally.”3 (Tapia Dep. at 62.) Ojeda denied

making inappropriate comments towards Plaintiff or touching her at

his deposition. (ECF No. 47-5, Deposition of Roberto Ojeda (“Ojeda

Dep.”), at 19.) Ojeda also denied physically attacking Plaintiff

3 Plaintiff has provided screenshots of the text messages, which are in Spanish,

but has not provided a certified translation. (ECF 43-9, Screenshots of

Plaintiff’s Text Messages with Defendant Tapia.) The Court may not rely on

untranslated documents. See Nam v. Permanent Mission of Republic of Korea to

United Nations, 657 F. Supp. 3d 382, 407 (S.D.N.Y. 2023) (“[untranslated]

documents are therefore inadmissible under the well-established rule that a

document in a foreign language is generally inadmissible unless accompanied by

a certified English translation.”) (internal quotation marks omitted)

(collecting cases). Instead, the Court will reference the text messages only

to the extent they were read into the record by a translator at Defendant

Tapia’s deposition.

on June 6, 2021, in his deposition testimony. (Id. at 19-20.)

Martinez similarly denied hearing Ojeda make inappropriate

comments to Plaintiff and denied making jokes about Plaintiff with

Ojeda. (Martinez Dep. at 21-22.) Plaintiff subsequently filed a

police report alleging that Ojeda had assaulted her on June 10,

2021, at 7:40pm. (ECF No. 44-17, Exhibit A to the Perlman

Declaration, at 3-4.) The police report notes in the narrative

section that Plaintiff explained that Ojeda shoved and grabbed her

by the head, but that no injury was sustained to Plaintiff. (Id.

at 4.)

Plaintiff testified at her deposition that she told Tapia

about her complaints of harassment. (Villada Dep. at 11-12.)

Plaintiff testified that she complained about the harassment to

Tapia on the phone in March of 2021, explaining that she told Tapia

“they had been drunk, and they were trying to kiss me and touch me

and hug me.” (Id. at 18.) Plaintiff also made reference to her

earlier complaints to Tapia in her June 9, 2021, text message,

noting that “Bernard and Mr. Roberto” said that she was a “gossiper

because of what [she had] accused.” (Tapia Dep. at 62.) Tapia

denied that Plaintiff ever spoke to him about any sexual harassment

prior to the June 9, 2021, text message. (Id. at 63.) After

receiving the text message from Plaintiff, Tapia explained that he

showed it to his sister, A. Carreto, and her husband, G. Carreto.

(Id. at 64.) Tapia explained that he did not know what actions G.

Carreto and A. Carreto took subsequently. (Id.)

During their deposition, G. Carreto and A. Carreto did not

recall having any discussion with Tapia about Plaintiff’s text

messages. (G. Carreto Dep. at 53; A. Carreto Dep. at 49.) G.

Carreto explained that when he received notice of Plaintiff’s

claims against Ojeda and Martinez, he asked the two cooks about

the claims, but they said they didn’t know anything. (G. Carreto

Dep. at 53-54.) Neither Ojeda nor Martinez were ever disciplined

following Plaintiff’s complaint. (Pl. 56.1 ¶¶ 62-63.)

II. Procedural Background

Plaintiff filed a complaint with the EEOC, and subsequently

received a Right to Sue letter dated February 18, 2022. (SAC ¶

66.) Plaintiff commenced this action against a majority of the

Defendants4 on May 12, 2022. (See generally ECF No. 1, Complaint.)

Defendants Martinez, Ojeda, C. Rendon, and Tapia failed to appear

or otherwise answer the original complaint, and Plaintiff

subsequently moved for default judgment against that subset of

Defendants on February 7, 2023. (ECF No. 16, Motion for Default

Judgment.) Plaintiff also moved to amend the complaint on March

2, 2023, and leave to amend was granted by Magistrate Judge Levy

on March 16, 2023. (Docket Order dated March 16, 2023.)

4 Excluding Mex Carroll’s Diner, M. Rendon, and A Carreto. (See generally ECF

No. 1, Complaint.)

Plaintiff’s First Amended Complaint included the originally-named

Defendants along with additional Defendants Mex Carroll’s Diner,

A. Carreto, and M. Rendon. (ECF No. 21, First Amended Complaint

(“FAC”).) The newly-added Defendants waived service, and the same

counsel appeared on behalf of all Defendants in answering the FAC

on March 31, 2023. (ECF Nos. 22-28.) The Court subsequently

denied Plaintiff’s motion for default judgment without prejudice

on May 1, 2023. (Docket Order dated May 1, 2023.)

After the resolution of various discovery disputes, the

parties certified the close of discovery on June 13, 2023, with

the exception of medical records, which had been requested.

(Minute Entry dated June 13, 2023.) On consent, Plaintiff filed

the SAC on June 19, 2023. (See generally SAC.) Plaintiff’s SAC

did not add any new Defendants and contained factual allegations

identical to the FAC, but did add a tenth cause of action arising

under the NYCHRL which had not previously been included. (Id.)

Defendants did not answer or otherwise reply to the SAC separate

from their answers to the FAC.

Plaintiff moved for a pre-motion conference in anticipation

of filing a motion for summary judgment on August 4, 2023, and the

conference was held on October 26, 2023. (Minute Entry dated

October 26, 2023.) The Court set a briefing schedule on November

22, 2023, after belatedly receiving a Rule 56.1 Counter Statement

from Defendants. (Docket Order dated November 22, 2023.)

Plaintiff filed the fully-briefed motion for partial summary

judgment on February 15, 2024. (ECF Nos. 43-45.) The Court

subsequently requested full copies of all deposition transcripts

be filed on the docket, and Plaintiff complied with the Court’s

order by filing the transcripts on July 31 and August 1, 2024.

(ECF Nos. 47-48.)

LEGAL STANDARD

Plaintiff moves for partial summary judgment pursuant to

Federal Rule of Civil Procedure 56, which provides that “[t]he

court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a).

“[T]he mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue

of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986) (emphasis in original). A fact is material if it

“might affect the outcome of the suit under the governing law,”

and a dispute is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. at 248.

For a genuine issue of material fact to exist, there must be

“sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party. If the evidence is merely

colorable, or is not significantly probative, summary judgment may

be granted.” Id. at 249-50 (citations omitted).

In reviewing a motion for summary judgment, the court “is not

to weigh the evidence but is instead required to view the evidence

in the light most favorable to the party opposing summary judgment,

to draw all reasonable inferences in favor of that party, and to

eschew credibility assessments.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst,

101 F.3d 845, 854 (2d. Cir. 1996)); accord Tolan v. Cotton, 572

U.S. 650, 651 (2014) (“[I]n ruling on a motion for summary

judgment, ‘[t]he evidence of the nonmovant is to be believed, and

all justifiable inferences are to be drawn in his favor.’”

(alteration in original) (quoting Anderson, 477 U.S. at 255)).

The moving party has the burden of establishing the absence

of a genuine dispute as to any material fact, and in opposing

summary judgment, the nonmoving party “need only present evidence

from which a jury might return a verdict in his favor” to defeat

a motion for summary judgment. Anderson, 477 U.S. at 256-57. To

meet this burden, however, a party opposing summary judgment must

“come forward with specific facts showing that there is a genuine

issue for trial,” not merely “show that there is some metaphysical

doubt as to the material facts.” Caldarola v. Calabrese, 298 F.3d

156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-

87 (1986)).

It is “beyond cavil that summary judgment may be appropriate

even in the fact-intensive context of discrimination cases.” Abdu-

Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001).

Nonetheless, the Second Circuit has “emphasized that trial courts

must be especially chary in handing out summary judgment in

discrimination cases, because in such cases the employer's intent

is ordinarily at issue.” Chertkova v. Conn. Gen. Life Ins. Co.,

92 F.3d 81, 87 (2d Cir. 1996); see also Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000).

DISCUSSION

Plaintiff seeks summary judgment as to her claims of (1) FLSA

and NYLL overtime violations; (2) Title VII, NYSHRL, and NYCHRL

hostile work environment; and (3) NYLL wage notice claims. (Pl.

Mem. at 2.) Defendants argue in response that there are “many

issues of fact at issue” which would preclude summary judgment.

(ECF No. 44-16, Declaration of David Perlman (“Perlman Decl.”), ¶

4.) Plaintiff argues in reply that the Defendants’ opposition, a

declaration by Defendants’ counsel, does not comply with the Local

Civil Rules, and that Defendants have repeatedly flouted the Local

Civil Rules throughout the course of this litigation. (ECF No.

45, Plaintiff’s Reply in Further Support (“Pl. Reply”), at 4-6.)

The Court agrees with Plaintiff that Defendants’ opposition

fails to comply with both the Federal Rules of Civil Procedure and

the Local Civil Rules. See Local Civil Rule 7.1 (providing that

legal argument is to be set forth in a memorandum of law, while

factual affirmations are to be set forth in affidavits). The

Declaration of Defendants’ counsel makes legal arguments, attaches

documents, fails to cite admissible evidence, and is not based on

personal knowledge. (See generally Perlman Decl.)

Notwithstanding Defendants’ failures, even a failure to oppose a

motion for summary judgment, as Plaintiff acknowledges, “does not

justify the granting of summary judgment" on its own. Vermont

Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.

2004). Rather, the Court must independently determine whether

there is a material issue of fact, and whether judgment is

warranted as a matter of law based on the undisputed evidence.

Id. Viewing the evidence in the light most favorable to the non-

moving party, the Court finds that summary judgment in favor of

Plaintiff is not appropriate on any of Plaintiff’s claims.

I. FLSA/NYLL Overtime Claims

Plaintiff claims that she was paid $15 per hour for the first

forty hours of work each week, and was paid at the same rate for

overtime worked in excess of forty hours, in violation of the NYLL

and FLSA’s requirements that overtime be paid at one and one-half

time the normal rate of pay. (Pl. Mem. at 15.) Defendants oppose

Plaintiff’s claim that she worked in excess of 40 hours per week,

and argue that she was not entitled to overtime, as a result.

(Perlman Decl. ¶ 8.) The Court concludes that summary judgment is

not appropriate because a genuine dispute exists regarding whether

Plaintiff worked in excess of 40 hours per week.

Setting aside the issue of whether each of the Defendants in

the instant case constituted Plaintiff’s employer (which is not at

all clear, given Plaintiff brings her claims against all four

restaurants owned in part by G. Carreto as well as A. Carreto, M.

Rendon, C. Rendon, and G. Carreto), the Court will instead focus

only on the issue of the calculation of Plaintiff’s hours worked.

A. Applicable Law

The FLSA requires employers to pay non-exempt employees at a

rate not less than one and one-half times their regular rate of

pay for any hours worked over forty within a workweek. 29 U.S.C.

§ 207(a)(1). The NYLL largely adopts the same standard as the

FLSA with respect to overtime compensation and requires a covered

employee to “be compensated at a rate of no less than one and one-

half times the regular rate of pay for any hours worked in excess

of forty per week.” Nakahata v. New York–Presbyterian Healthcare

Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (citing 12 N.Y.C.R.R.

§ 142–2.2). To establish an employer's liability for unpaid

overtime compensation under the FLSA and NYLL, a plaintiff must

prove that she performed work, in excess of 40 hours in a workweek,

for which she was not properly compensated, and that her employer

had actual or constructive knowledge of that work. See Kuebel v.

Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011).

B. Analysis

The evidence that Plaintiff worked more than forty hours per

week consists solely of her testimony. Plaintiff testified at her

deposition that she worked “approximately 60 to 66 hours per week”

from “October 2019 through March of 2020.” (Villada Dep. at 31.)

Plaintiff further testified that she worked “thirty, thirty-five”

hours per week from March 2020 through July 2020 and that she

worked between “35 to 45 hours” per week “[a]fter” the pandemic.

(Id. at 10, 32.)

Defendants’ opposition likewise consists primarily5 of the

Defendants’ own testimony. Defendant G. Carreto testified that no

employees at any of his restaurants, including the Grand Canyon

Diner, are paid overtime, because it is policy that they only work

40 hours or less. (G. Carreto Dep. at 46.) Defendant M. Rendon

also testified that no employees work over forty hours at the Grand

Canyon Diner. (M. Rendon Dep. at 14.) In further support of

Defendants’ contention that this policy existed and was enforced,

5 Defendants also produced payroll records, (see ECF No. 36-4), showing that

Plaintiff worked no more than 40 hours per week from the time of her hiring

through December 31, 2020, but Plaintiff appears to argue that those records

only reflect the regular pay she received via check, and not the overtime hours

she worked and was paid in cash, (Pl. Reply 56.1 ¶ 12). As such, the payroll

records, which only cover a subset of the relevant period, do not alter the

Court’s analysis.

Plaintiff’s co-worker, Defendant Martinez testified at his

deposition that he had never worked more than 40 hours in a single

week. (Martinez Dep. at 8.) Defendant A. Carreto, who worked

part-time at the Grand Canyon Diner, similarly testified that there

were no employees at the Grand Canyon Diner who worked over forty

hours in a week, although she does not specify the basis for her

testimony. (A. Carreto Dep. at 27.)

Plaintiff argues that the admission by Defendants that they

did not pay Plaintiff any overtime is sufficient on its own to

support a judgment in favor of Plaintiff on this claim. (Pl. Reply

at 10.) Plaintiff misstates the law, as the Court cannot conclude

that Defendants have violated the FLSA and NYLL merely because the

lack of any overtime wages makes it obvious that she would not

have been compensated for any overtime she might have worked.

Rather, to establish liability on an overtime claim, Plaintiff

must prove that she actually worked in excess of forty hours in a

given work week. See, e.g., Lundy v. Catholic Health Sys. of Long

Island, 711 F.3d 106, 113-14 (2d Cir. 2013).

Plaintiff has failed to show that there is no genuine dispute

of material fact regarding whether she worked in excess of 40 hours

per week. To the contrary, the conflicting testimony of Plaintiff

on the one hand, and Defendants G. Carreto, A. Carreto, M. Rendon,

and Martinez on the other, is more than sufficient to create a

genuine dispute of material fact as to whether Plaintiff ever

worked more than forty hours in a week. See, e.g., Severino v.

436 W. L.L.C., No. 13-CV-3096 (VSB), 2015 WL 12559893, at *7

(S.D.N.Y. Mar. 19, 2015) (finding conflicting testimony sufficient

to create a genuine dispute of material fact as to whether

plaintiff worked more than forty hours in a week); Francois v.

Mazer, No. 09-CV-3275, 2012 WL 653886, at *5 (S.D.N.Y. Feb. 28,

2012) (same). Because there is a genuine dispute of material fact

as to whether Plaintiff worked overtime, Plaintiff's motion for

summary judgment is denied on her overtime claim under the FLSA

and NYLL.

II. Title VII, NYSHRL, and NYCHRL Hostile Work Environment

Claims

As mentioned above, Plaintiff also seeks summary judgment on

her Title VII, NYSHRL, and NYCHRL claims that she was subjected to

a hostile work environment based on her sexual harassment by her

coworkers, including Defendants Ojeda and Martinez. (Pl. Mem. at

15-19.)

Title VII prohibits employers from discriminating against any

individual “with respect to his compensation, terms, conditions or

privileges of employment, because of such individual's race,

color, religion, sex or national origin.” 42 U.S.C. § 2000e–

2(a)(1). For purposes of Title VII, the term “employer” means “a

person engaged in an industry affecting commerce who has fifteen

or more employees for each working day in each of twenty or more

calendar weeks in the current or preceding year, and any agent of

such person.” 42 U.S.C. § 2000e(b).

As a threshold matter, the undisputed evidence shows that the

Grand Canyon Diner only employed three cooks, four dish washers,

and four waiters, for a total on 11 employees. (M. Rendon Dep. at

10-11; G. Carreto Dep. at 23-24.) When asked at his deposition if

the Grand Canyon Diner had “ever had more than 11 employees” in

the past six years, Defendant G. Carreto stated that the restaurant

had employed “12 [at] the most.” (G. Carreto Dep. at 24.)

The Second Circuit has instructed that a parent company “may

be considered the employer of its subsidiary's employees” for Title

VII purposes if the two companies are found to represent a “single,

integrated enterprise.” Brown v. Daikin Am. Inc., 756 F.3d 219,

226 (2d Cir. 2014) (internal quotation marks and citation omitted).

The question of whether “employees of different employers may be

aggregated for purposes of satisfying the fifteen-employee minimum

required by Title VII under 42 U.S.C. § 2000e,” however, “has never

been resolved by [the Second Circuit.]” Arculeo v. On-Site Sales

& Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005). Even if the Second

Circuit had answered the question of whether it was permissible to

aggregate employees to reach the 15-employee threshold for Title

VII purposes, however, the Court is not persuaded that Plaintiff

has shown the Corporate Defendants to be a “single employer.”

“A ‘single employer’ situation exists where two [or more]

nominally separate entities are actually part of a single

integrated enterprise.” Id. at 198 (internal quotation marks and

citation omitted). “While there are some differences in approach

to the single employer issue, the test in this circuit is whether

all the circumstances of the case tend to show the absence of an

arm's length relationship between two entities.” Westphal v. Catch

Ball Prod. Corp., 953 F. Supp. 475, 478 (S.D.N.Y. 1997) (internal

quotation marks and citation omitted). The Second Circuit has

instructed that pertinent factors to consider include “evidence of

(1) interrelation of operations, (2) centralized control of labor

relations, (3) common management, and (4) common ownership or

financial control.” Cook v. Arrowsmith Shelburne, Inc., 69 F.3d

1235, 1240-41 (2d Cir. 1995).

Here, it is undisputed that G. Carreto has majority ownership

of the four restaurants Plaintiff names as the Corporate

Defendants, and that he, or his wife, directly manages each of the

four restaurants. (G. Carreto Dep. at 11-17.) It is also

undisputed, however, that Plaintiff did not work at any of the

restaurants named as Defendants beyond the Grand Canyon Diner, and

that employees were not “shared” between locations with the

exception of A. Carreto, who worked part time at both Mex Carroll’s

Diner and the Grand Canyon Diner. (Def. 56.1 ¶ 3, 18; A. Carreto

Dep. at 7-8.) Plaintiff testified she considered Defendant Tapia,

who was employed as a bar back at the Grand Canyon Bistro, an

“owner” of the Grand Canyon Diner, (see Villada Dep. at 12), but

this is disputed by Defendants M. Rendon, G. Carreto, and Tapia,

who testified that only M. Rendon and G. Carreto had an ownership

stake in the Grand Canyon Diner, (see M. Rendon Dep. at 13; G.

Carreto Dep. at 10-11; Tapia Dep. at 20-21).

The present case presents striking similarities to that of

Apolinar v. R.J. 49 REST., LLC, No. 15-CV-8655 (KBF), 2016 WL

2903278, at *4 (S.D.N.Y. May 18, 2016), in which the district court

found several restaurants owned by the same family did not

constitute a single enterprise. In Apolinar, the plaintiffs sued

several corporate entities, each of which did business under the

name “Toasties.” Id. at *1. The businesses had seven active

locations, five of which were listed on the same Toasties website

home page which described the business as “a family owned and

operated New York Gourmet Delicatessen.” Id. The plaintiffs

alleged that, although the businesses were conducted under

separate corporate names, all of them operated as a single

enterprise by the same family--two twin brothers and their mother.

Id. at *2. The Apolinar plaintiffs further alleged that the family

members were in charge of all areas of the Toasties deli enterprise

including the hiring and termination of workers, wage

determinations, work schedules, type of work assigned, designated

work load, and employment policy. Id. The court nonetheless found

that those allegations were insufficient to establish that the

separate corporations had “an interrelation of operations or

centralized control of labor relations with plaintiffs’ identified

direct corporate employer” sufficient to hold each of them liable

under the FLSA. Id. at *4. The court concluded that “[a]lthough

plaintiffs ha[d] plausibly alleged, based on their allegations

relating to the content of the Toasties website, that there existed

common ownership and a common purpose,” the plaintiffs had failed

to “allege that the Moving Corporate Defendants had any sort of

direct employer responsibility over them, such as the ability to

hire or fire, or set work hours or job responsibilities.” Id.

So too here, Plaintiff fails to offer any admissible evidence

suggesting that any of the Corporate Defendants, aside from the

Grand Canyon Diner, had any sort of direct employer responsibility

over her. This lack of any direct interaction by Plaintiff with

any of the restaurants beyond the Grand Canyon Diner leads the

Court to conclude that the Corporate Defendants did not constitute

a single integrated enterprise6, and therefore, even if aggregation

were appropriate under Title VII, which is a question the Second

Circuit has yet to answer, it would not be appropriate based on

6 The Court notes that its conclusion that the Corporate Defendants do not

constitute a single integrated enterprise would also apply to Plaintiff’s FLSA

and NYLL claims. The Court declines to make findings regarding which, if any,

of the Defendants employed Plaintiff for purposes of the FLSA and NYLL, but

notes that it is undisputed that Plaintiff only worked for, and was paid by,

the Grand Canyon Diner and did not work at any of the other restaurants owned

by G. Carreto. (Pl. 56.1 ¶ 6; Villada Dep. at 11.)

the facts of this case. See Huer Huang v. Shanghai City Corp.,

459 F. Supp. 3d 580, 587-89 (S.D.N.Y. 2020) (finding the Chinatown

location of the Joe Shanghai restaurant chain was not part of a

single integrated enterprise when the plaintiffs only worked at

the Midtown and Flushing locations, despite shared ownership and

a shared website for all locations).

Because Plaintiff has failed to establish that the Grand

Canyon Diner employed fifteen employees, the threshold number for

application of Title VII, her Title VII claim fails on the merits,

and Plaintiff’s motion for summary judgment is denied as to her

Title VII claim. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)

(“the threshold number of employees for application of Title VII

is an element of a plaintiff's claim for relief, not a

jurisdictional issue”). The Court is presented with an awkward

procedural posture, however, in that the Defendants did not move

for summary judgment, or otherwise put Plaintiff on notice that

her Title VII claims should be dismissed on the merits due to the

lack of the requisite number of employees. See Nunez v. Goord,

172 F. Supp. 2d 417, 433 (S.D.N.Y. 2001) (“Regardless of whether

or not Defendants made their motion for summary judgment on this

particular ground, the Court has the power to dismiss a complaint

sua sponte for failure to state a claim . . . [but] the party

defending a sua sponte dismissal ought to have an opportunity to

be heard before issuance of the order.” (citations omitted)).

Accordingly, the Court will issue a subsequent Order to Show Cause

to provide Plaintiff an opportunity to be heard regarding why her

Title VII claims should not be dismissed for failure to state a

claim, and why the Court should not decline to exercise

supplemental jurisdiction over the associated state law claims if

Plaintiff’s Title VII claims are dismissed.

Having found that Plaintiff’s Title VII claim is likely to

fail on the merits, and thus Plaintiff is, at the very least, not

entitled to summary judgment in her favor, the Court finds that

summary judgment is also inappropriate for Plaintiff’s remaining

hostile workplace claims arising under the NYSHRL and NYCHRL. “A

plaintiff claiming a hostile work environment animated by

discrimination in violation of the NYSHRL must show that the

workplace is permeated with discriminatory intimidation, ridicule,

and insult that is sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive working

environment.” Reichman v. City of New York, 117 N.Y.S.3d 280, 285

(2d Dep’t 2020) (citation omitted). “To determine whether a

hostile work environment exists, a court must consider all the

circumstances, including the frequency of the discriminatory

conduct, its severity, whether it is physically threatening or

humiliating, or a mere offensive utterance, and whether it

unreasonably interfered with an employee's work performance.” Id.

(citation omitted).

Moreover, “[u]nder the NYCHRL, a plaintiff claiming a hostile

work environment need only demonstrate that he or she was treated

less well than other employees because of the relevant

characteristic.” Id. (internal quotation marks and citation

omitted). “The conduct alleged must, however, exceed what a

reasonable victim of discrimination would consider petty slights

and trivial inconveniences, and mere personality conflicts will

not suffice to establish a hostile work environment.” Id.

(internal quotation marks and citations omitted).

A genuine dispute of material fact is clearly present in the

instant case – the Defendants all flatly denied in their deposition

testimony that Plaintiff was subject to any harassment whatsoever,

and Plaintiff stated the opposite. (Villada Dep. at 28-29, 37;

Martinez Dep. at 21-22; Ojeda Dep. at 19-20.) In the presence of

such a clear dispute about whether the underlying sexual harassment

occurred and given the Court’s inability to make credibility

determinations on a motion for summary judgment, Plaintiff’s

motion for summary judgment is denied on her NYSHRL and NYCHRL

claims. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d

Cir. 2005) (“Assessments of credibility and choices between

conflicting versions of the events are matters for the jury, not

for the court on summary judgment.”).

III. NYLL Wage Notice Claims

Plaintiff moves for partial summary judgment on her claim

that the Defendants failed to provide her with a wage notice within

ten business days of her hiring, as required by the NYLL. (Pl.

Mem. at 14.) Plaintiff claims that summary judgment is appropriate

because “Defendant [G.] Carreto testified that he does not provide

the [Grand Canyon] Diner or Grand Canyon Bistro employees with a

formal, written notice of their wage upon hiring.” (Id.)

Defendant G. Carreto did indeed make a statement to that effect in

his deposition, testifying that while he orally explained the wages

that employees would be paid upon their hiring, he did not do so

in writing. (G. Carreto Dep. at 24-25, 29.)

While liability appears to be a fairly straightforward

question on Plaintiff’s NYLL wage notice claim, this Court’s

jurisdiction over the claim is not quite as clear. The Supreme

Court has held that “federal courts have an independent obligation

to ensure that they do not exceed the scope of their jurisdiction,

and therefore they must raise and decide jurisdictional questions

that the parties either overlook or elect not to press.” Henderson

ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). The Court

concludes that it lacks subject-matter jurisdiction over

Plaintiff’s wage notice and wage statement claims under the NYLL,

(see SAC ¶¶ 161–163), because Plaintiff has failed to allege facts

in the SAC, and failed to present evidence in support of her motion

for summary judgment, to establish her standing to pursue those

claims in federal court.

Article III of the federal Constitution restricts federal

court power to hearing “cases” and “controversies.” U.S. Const.

art. III, § 2, cl. 1. A “case” or “controversy” cannot exist if

the plaintiff lacks a personal stake, or “standing.” TransUnion

LLC v. Ramirez, 594 U.S. 413, 423 (2021). To have Article III

standing, the plaintiff must have suffered an injury-in-fact

likely caused by the defendant’s allegedly unlawful conduct and

redressable by a favorable court decision. Id. The injury must

be “concrete and particularized,” which means some specific harm

to the plaintiff beyond the defendant’s technical violation of a

statutory mandate. Id. at 440. Standing is not “dispensed in

gross.” Id. at 431. Rather, the plaintiff must show standing

separately for each claim he or she presses. Id.

Here, Plaintiff does not link any legally cognizable injury

that she personally experienced to Defendants’ failure to provide

wage statements and wage notices under the NYLL. Plaintiff instead

merely alleges that the Defendants failed to comply with these

statutory mandates. (See SAC ¶¶ 161–163.) Without some tangible

downstream harm flowing from the statutory violations, Plaintiff

cannot have suffered a concrete injury resulting from Defendants’

violations of the NYLL’s wage statement and wage notice

requirements. Thus, she lacks Article III standing to pursue those

claims in this Court. Multiple courts in this district have

reached similar results after the Supreme Court’s decision in

TransUnion clarified the requirements to establish standing,

beyond bare allegations of statutory violations. See, e.g., Quieju

v. La Jugeria Inc., No. 23-CV-264 (BMC), 2023 WL 3073518, at *2

(E.D.N.Y. Apr. 25, 2023); Guthrie v. Rainbow Fencing Inc.,

No. 21-CV-5929 (KAM), 2023 WL 2206568, at *6 (E.D.N.Y. Feb. 24,

2023); Sevilla v. House of Salads One LLC, 20-CV-6072 (PKC),

2022 WL 954740, at *7 (E.D.N.Y. Mar. 30, 2022).

Nonetheless, the Second Circuit has instructed district

courts to provide an “adversely affected party with notice and an

opportunity to be heard” before dismissing an action sua sponte

for lack of subject matter jurisdiction. McGinty v. New York, 251

F.3d 84, 90 (2d Cir. 2001). As a result, the Court will deny

Plaintiff’s motion for summary judgment on the wage notice claim

and will issue a subsequent Order to Show Cause to provide

Plaintiff an opportunity notice and an opportunity to be heard

regarding the Court’s findings on the lack of subject matter

jurisdiction.

CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Partial

Summary Judgment is denied in its entirety. Genuine disputes of

material fact prevent the entry of summary judgment in favor of

Plaintiff on the FLSA, NYLL, NYSHRL, and NYCHRL claims; Plaintiff

has failed to offer evidence to show that the Grand Canyon Diner

is an “employer” for purposes of Title VII; and Plaintiff has

failed to show a concrete injury to provide her with Article III

standing for her wage notice and wage statement claims.

The Court will subsequently issue an Order to Show Cause

directing Plaintiff to respond and state why (1) Plaintiff’s Title

VII Claims should not be dismissed on the merits for failing to

establish that the Grand Canyon Diner employed the threshold number

of employees for application of Title VII; (2) the Court should

not decline to exercise supplemental jurisdiction over Plaintiff’s

remaining NYSHRL, NYCHRL and state common law claims in the absence

of Plaintiff’s Title VII claims; (3) Plaintiff’s NYLL Wage Notice

and Wage Statement Claims should not be dismissed for lack of

Article III standing; and (4) why Defendants Ojeda and Martinez

should not be dismissed as parties if the aforementioned state law

claims are dismissed.

SO ORDERED. - “a □□ _—_—

Dated: August 19, 2024 ) oer wt er

Brooklyn, New York

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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